THE most significant flaw in the militia-only interpretation of the 2nd Amendment is...

Well this is interesting but it completely avoids what I have said. You provide no answer to how your militia only theory actually works—how it protects anything from the power of Congress. You provide no answer to any of the criticisms I make of your position. You provide no answer to my constitutional challenge of your blanket prior ban on the exercise of a right. And you provide no sources whatsoever.

I realize the mode of debate often falls into the desire to ask questions the other side cannot answer—I am equally guilty of this tactic. But by what moral right do you demand that I answer your questions while refusing to answer mine?

In any event, since I have an answer for your questions, let me address what you did say.

Why the National Guard. It is the organized militia today. Congress has used its Article I Section 8 power to model the militias into this system. And Congress can change it again this morning if it wanted to. There is no “right of the people” here because Congress totally controls it.

It is not really that complicated. Ask me and I will cite the federal statutes Congress enacted to transform the militias into the National Guard.

I generally find it better to argue with what I do say than what you wish I would say, even if the latter is far easier to rebut. However, I will assume this is merely a request for a clarification.

No. That is not what I am proposing. The militia organization, training, and all militia arms was given to Congress before the 2nd Amendment was ever considered. The militia is a ball of clay in the hands of Congress, and it has molded its shape more than once. Today it pleases Congress to have that shape be the current National Guard system. That is the active, organized militia. Congress has further ordered a much larger segment of the public is the unorganized militia. And because Congress can change this at a whim there is no “right of the people” involved if you argue the RKBA is limited to those whom Congress allows.

There is no right to form a militia outside the control of Congress.

 

No sir. I doubt neither your level of intelligence nor your powers of imagination—except in the matter of your inability to tell me how your interpretation of the 2nd Amendment into a militia only right actually works. That was the question I asked—the question you said you would answer—and the question which remains unanswered.

We do not have a lengthy history, and my posts are so few and so scattered that you may not know my position on the militia preamble. I have consistently argued that the militia preamble is a statement of principle. For example, consider the very first American Constitution—for the Commonwealth of Virginia (adopted before the Declaration of Independence):

"That a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state; that standing armies, in time of peace, should be avoided, as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power."

Do you see the language? This is a statement of principle—of how a free government should be run. Now see it again in a few more examples:

“That a well regulated militia is the proper, natural and safe defense of a free government.

That standing armies are dangerous to liberty, and ought to be under strict subordination to and governed by the civil power.” DELAWARE DECLARATION OF RIGHTS (September 11, 1776)

“That a well-regulated militia is the proper and natural defense of a free government.

That standing armies are dangerous to liberty, and ought not to be raised or kept up, without consent of the legislature.” CONSTITUTION OF MARYLAND (November 3, 1776)

“A well-regulated militia is the proper, natural, and safe defense of a state.

Standing armies are dangerous to liberty, and ought not to be raised or kept up without the consent of the legislature.” CONSTITUTION OF NEW HAMPSHIRE (June 2, 1784)

In every instance it used to make a statement of principle—the best way to ensure a free state is to rely upon a militia rather than a standing army.

The 2nd Amendment militia preamble is nothing more than a copy/paste of this principle. This is why it says the militia is necessary to the security of a “free state.”

In my opinion, your argument takes what is a liberty enhancing statement—a statement of how to secure the people from oppression by their government—and converts it into a liberty restricting statement intended to destroy the individual RKBA. You would use it not as it was intended, but instead as a cage that was included within a body of individual liberties not to protect one of them, but rather to destroy it by placing it under the total domination of the federal government.

There simply is no evidence that the 2nd Amendment’s militia preamble was included for the purpose of destroying a pre-existing individual right by limiting the right to an activity totally dominated by Congress.

Do you have any sources for this?

 

No longer necessary? Do we indeed find that in today’s modern world men are always charitable to one another? That thoughts of tyranny and domination of others have been eliminated from every breast? That we all live like happy animals in a state of grace, where evil has been abolished, and where we have no need of laws or protections?

I see no evidence of this. Unfortunately, I daily see the opposite. And so I must decline your advice, and instead rely upon my old teacher:

“But I am fearful I have lived long enough to become an old-fashioned fellow. Perhaps an invincible attachment to the dearest rights of man may, in these refined, enlightened days, be deemed old-fashioned; if so, I am contented to be so.” Patrick Henry, speech of June 5, 1788.

I have a significant problem with this argument. It cannot be disputed that the Bill of Rights was adopted as a set of limitations on the power of the federal government.

Your argument says these limitations exist for only as long as the government chooses to be bound by them. That it can unilaterally use its power to create a condition—and that condition being the one universally condemned by every founding father who has ever commented upon the subject—in which it claims the limitation on its own power (the right it must respect) is no longer necessary.

Please explain how a government—admittedly bound by the specific limitations found in its own chartering document—has any power to create a condition that allows it to declare one of those restrictions on its power “clearly illegal on its face”—thereby justifying it telling us we must “write it out of the Constitution”?

This is amazing. I have seen a lot in my years of blogging, but I have never expected to see a unilateral claim that a portion of the actual Constitution—found in the Bill of Rights no less—is “clearly illegal on its face.”

If you intend to stand by this statement, then please defend it. How is a constitutional amendment “clearly illegal on its face”?

 

Back to the original thought for a moment. I started this thread because I had re-read the dissent in Heller and I found something missing—the explanation of how it all worked.

If you could ask Stevens and Breyer how their militia only right theory works, they would tell you “it works perfectly fine to keep you from having a RKBA outside the total control of Congress. That is what I want, so that is all it has to do. Don’t ask me to explain it further.”

But the 2nd Amendment was put into the Bill of Rights for a reason, and that reason cannot be “it was put there to deny you a right.” It was put there to protect something.

Stevens and Breyer say it was put there to protect an individual’s right to have arms while participating in a government militia.

And, Alexander, I get it that this is your position.

So let’s assume you are correct. My question is simple: Tell me how it works to achieve the purpose of protecting the limited right you claim it protects.

You have avoided this question, and have instead accused me of ignoring the militia preamble. So now I have answered this deflection and I have told you what it is in my opinion. If you ask, I will further tell you why it was placed in the 2nd Amendment. You can take whatever time you want to disagree with what I say, but here is the point:

I can explain every aspect of my interpretation of the 2nd Amendment. What the preamble is. Why it was included with the right. What the right is. Why it was important to be included for protection. How the Amendment operates to achieve the protection of the stated right.

And you can’t do this with your interpretation. In fact no one who favors the “militia only” interpretation has been able to do this. I believe it is because the only goal of this interpretation of the 2nd Amendment is the denial of the individual RKBA. The artificial limitations placed upon the right (confining it to militia participation) were simply created to fulfill this purpose. And having said “well, that’s done,” these theorists look up, see that they have created a limited “right” that can do nothing, that protects nothing from the power of the federal government, and they can’t figure out how to explain their creation. They have been so busy digging the grave for the individual RKBA that they can’t figure out how to get out of the hole they have dug.

And, with all due respect, you have still not done so either.

Tell me how your theory works. How does the limited militia only right you create in the 2nd Amendment protect anything from the power Congress wields over the militia?

That is the question I asked in the beginning. That is the question you said “I will” to.

 

This is, of course, unsupportable nonsense.

 

The 2nd Amendment will never fall. It will survive for all time.

 

One article among 12.

 

This is a wholly dishonest reading of Heller.
The issue of those stringent regulations was not brought before the court.

 

The shooter murdered his mother to steal her firearm.
That's "easy access"?

 

25th amemndment



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Constitution of United States of America 1789 (rev. 1992)

Section 1

Section 2

Section 3

Section 4

Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.

Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.

 

The law does not say this.

 

Is irrelevant to what I said.

 

People can and do murder police officers and steal their weapons.
How then do you prevent "easy access" to guns?

 

All of which violate the constitution.

Denying my right to arms because of family members also violates the constitution.

 

I say it's relevant.

25th amemndment



Search Results

Constitution of United States of America 1789 (rev. 1992)

Section 1

Section 2

Section 3

Section 4

Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.

Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.

 

You cannot cite a single instance of a license requirement for the basic exercise of a right.

 

This means nothing.

 

The second Amendment was written in a different time place. In todays world, it means nothing.

 

Oooh... too bad the 5th amendment requires due process.
You know, the requirement that right may not be taken away until the state takes you to court.

 

The Supreme Court seems to disagree with you.

 

Your opinion is meaningless.

 

How do you plan to confiscate guns when you do not know where they are or who has them?

 

By such logic, the entire bill of rights means nothing in the modern day and age. Freedom of speech, trial by jury, freedom from unreasonable search and seizures, double jeopardy, etc. by your logic it is all meaningless, and should be done away with.

Pray tell why do you endorse the notion of the police state as an acceptable way of living?

 

Your's is meaningless. The Supreme Court can turn around and intemperate the 2nd Amendment in a different way tomorrow.

 

Not much chance of that happening anytime soon.